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WIthout an opinion, the EIghth Circuit denied a petition for rehearing or rehearing en banc filed by Arkaansas Judge Wendell Griffen, who sought review of a July ruling that ordered a federal district court to dismiss all claims he had made against the Arkansas Supreme Court and its justices. CCL represented the court, its chief justice and two of the associate justices in the litigation. The chief judge of the Eighth Circuit did not particpate in the decision, and one judge would have granted the petition.

Griffen's lawsuit alleged a violation of his constitutional rights when the state supreme court ordered him recused from death penalty cases after he issued an order in one immediately after particpating in an anti-death penalty rally. Griffen's lawsuit contended that he had a free-speech right to speak out against the death penalty and was religiously compelled to do so, but CCL argued that the due process rights of the litigants took precedence over the judge's rights so that his exercise of those rights did not require that he be allowed to preside over cases in which he had demonstrated potential bias. The Eighth Circuit agreed and ordered the case dismissed.

Counsel for Judge Griffen has indeicated he will seek review of the decision in the U.S. Supreme Court.

CCL, along with co-counsel, filed a response to supplemental authority filed by the defendant in a Colorado case that challenges that state's medical malpractice cap, which was argued last October. In Smith v. Surgery Center, a patient went into the medical facility for a steriod injection, but left paralyzed from the waist down and transforming her husband into a round-the-clock caregiver. After a trial, the jury awarded the couple nearly $15 million in damages. While the defendant facility has challenged their liability, they have also invoked the Colorado damage cap, which limits medical malpractice damages to $1 million, no more than $300,000 of which may be for noneconomic compensation.

In defense of capped damages, the Surgery Center notified the Court of a recent decision by the Wisconsin Supreme Court, which upheld that state's limits on medical malpractice non-economic damages and overturned a 2005 decision of the same court that invalidated a prior similar damage cap. In the response drafted by CCL, Plaintiffs pointed out that their only citations to the prior Wisconsin case was for unassailable factual propositions that were unaffected by the new case. They further pointed out that the dissenter in the 2005 case wrote the new decision, making the same points that did not command a majority of the court in 2005.

As a result, CCL argued, the new case merely reflects a change in membership on the court and not the development of new reasoning. As Justice Thurgood Marshall once wrote: "It takes little detective work to discern just what has changed since this Court decided [the prior case]; this Court's own personnel." That is an illegitimate basis for overturning a previous decision, because, as Justice Potter Stewart wrote, it "invites the misconception that this institution is little different from the two political branches of the Government."

A New Mexico District Court declared the state's 1976 limits on medical malpractice damages unconstitutional in a decision where CCL President Robert S. Peck testified as an expert witness. The cap would have reduced a $2.6 million jury verdict to $600,000 plus medical expenses had the cap not been invalidated.

The court held that the cap violated the inviolate right to trial by jury in the New Mexico Constitution. Because the statutory cause of action created in 1976 to create the cap was duplicative of the preeexisting common-law cause of action for medical malpractice, the court ruled that the jury's authority in the case was set by the Constitution, which requires that the right to a jury trial exists "inviolate" from how it was "heretofore" practiced. The constitutional authority of the jury includes both the determination of the facts presented at trial and the damages incurred.

The case, Siebert v. Okun, is likely to be appealed by the defendant-physician.

Following on the heels of an historic verdict in a case declaring New York City’s stop-and-frisk policies unconstitutional, the ACLU published a report in March that laid bare Chicago’s widespread, discriminatory stop-and-frisk practices. CCL joined co-counsel Antonio M. Romanucci, Martin D. Gould & Angela Kurtz with the Chicago firm Romanucci & Blandin, LLC, and Rod Gregory of the Gregory Law Firm in Jacksonville, Florida, in representing more than two dozen African-American and Hispanic male Chicago residents who filed a putative class action against the City, the Superintendent of Police, and the officers for violations of their Fourth and Fourteenth amendment rights.

The City and the Police Superintendent each separately moved to dismiss an amended complaint, attempting to litigate the merits of the plaintiffs’ claims before the defendants filed their Answer or provided the discovery the plaintiffs need to prove their claims.

CCL President Robert S. Peck and Senior Litigation Counsel Valerie M. Nannery worked with co-counsel to counter the City’s arguments that the plaintiffs do not have standing to seek equitable relief, and that the plaintiffs didn’t allege sufficient facts in the 713-paragraph Amended Complaint to show that their constitutional rights had been violated by the City’s practices and policies. In response, CCL pointed to the allegations that the incredibly widespread practice caused numerous plaintiffs to be stopped and frisked multiple times each, sometimes on the same day, without reasonable suspicion and based on their race or national origin, all while going about their daily lives, including instances where they were standing in front of their own homes. CCL argued that the allegations demonstrate a strong likelihood that the plaintiffs will again be subject to the challenged widespread policy because they cannot avoid being stopped and frisked simply by obeying the law.

The defendants’ motions will be heard in the U.S. District Court for the Northern District of Illinois on December 22nd.

U.S. District Court Judge James D. Peterson denied CCL’s motion for a temporary restraining order on behalf of Wisconsin Chief Justice Shirley Abrahamson as unnecessary because the results of the April 7, 2015 vote on a state constitutional amendment changing the selection process for chief justice will not be certified until April 29, so that no one could act on it before then. The ruling, he wrote, was not a decision on the merits. He also set a April 21st status conference to finalize a briefing schedule and promised to resolve the issue quickly.

Representing Chief Justice Shirley Abrahamson and five voters, CCL filed a federal lawsuit Wednesday seeking a declaration that the constitutional amendment approved by voters April 7, which changed the method by which the chief justice was selected, cannot be implemented until a naturally occurring vacancy occurs in that post. Abrahamson, a member of the court since 1976, has served as chief justice since 1996. Prior to Tuesday’s vote, the Wisconsin Constitution conferred the office of chief justice on the most senior continuously serving justice. In 2009, Abrahamson was elected to another 10-year term, which ends on July 31, 2019.

The newly approved constitutional amendment changes the seniority rule to an election of the justices for a two-year term. The court’s majority is generally regarded as conservative, while Abrahamson is known as a liberal. News reports have speculated that the upshot of the amendment is that Abrahamson would be replaced with a member of the conservative wing of the court.

The complaint and memorandum, seeking immediate injunctive relief, argues that a constitutional amendment must explicitly and unmistakably indicate that it is to have retroactive effect; otherwise, the amendment must be construed as prospective in nature. Any other approach, the lawsuit contends, would violate the due process and equal protection rights of Abrahamson in her position, as well as the dilute and debase the voters who supported her in the 2009 election.

The lawsuit names the six other Wisconsin Supreme Court justices as defendants, as well as certain state officials responsible for administration and payroll. Wisconsin Attorney General Brad Schimel was served with the complaint as well, as his office has authority to defend the action. The plaintiffs in this action are represented by CCL’s Robert S. Peck and Kathryn Minton.

In a hearing on a motion to dismiss for failure to comply perfectly with presuit requirements in medical malpractice cases, CCL President Robert Peck told a Florida trial judge that, if the gist of the defendants arguments was that the plaintiff did not utilize the statutorily mandated form, constitution flaws in the form excused the oversight.

The issue arises in a tragic case of a woman dying from brain cancer as a result of a late diagnosis. Though the defendants engaged in extensive presuit discovery, eventually received all records they sought before suit was filed, and could not show they were prejudiced in any way, they nonetheless asked the judge to use a technicality to oust the plaintiff from court. Florida lawyer Sean Dominic, counsel for the plaintiff, argued that repeated Florida precedent rejected the defendants' stance. He brought CCL's Peck into the case to emphasize the constitutional basis for those precedents. Peck told the court that the form required the plaintiff to sign releases inconsistent and irreconcilable with Florida Rule of Civil Procedure 1.650, thereby violating the Florida Constitution's exclusive assignment of primacy over court processes to the Florida Supreme Court. The form also violated Florida's strong right of privacy and its guarantee of access to the courts, Peck said.

The case, heard in Osceola County, Florida, was taken under advisement.

In a case involving a woman’s brain cancer that became incurable allegedly because of a delayed diagnosis, Berger v. Garner, filed in a Florida Circuit Court, CCL argues that dismissal should be denied because the defendant health care providers’ argument that the refusal to use a form that permits ex parte interviews imposed an unconstitutional condition on commencement of the lawsuit. The case, set for a hearing next week, involves a 2013 Florida statute that requires medical-malpractice plaintiffs to file a notice of intent to sue at least 90 days before a lawsuit can be filed and include an authorization for the likely defendants, their lawyers, their experts, and their insurance adjusters to interview the plaintiff’s treating physicians without plaintiff’s counsel present. When no such authorization was filed 90 days before suit was brought, the Defendants moved to dismiss, even though they admitted they have never used the authorization to engage in such ex parte interviews.

CCL’s brief for the plaintiff, written by President Robert S. Peck and associate Kathryn Minton, argues that the requirement conflicts with Florida Rule of Civil Procedure 1.650 and is therefore null and void as a legislative invasion of the Florida Supreme Court’s exclusive authority to promulgate rules of court. In addition, the requirement, which requires revelation of private health information not at issue in the case, violates Florida’s strong constitutional right to privacy. The brief further argues that the authorization for ex parte interviews violate the Florida Constitution’s guarantee of access to the courts by not being justified by overpowering public necessity and implemented in the least restrictive fashion. Finally, the brief argues that the ex parte provision constitutes a special law that provides an evidentiary privilege only to medical-malpractice defendants and burden to those claimants, when the issue of personal injuries to which treating physicians have evidence is common to a wide variety of plaintiffs.

A hearing on the motion to dismiss is scheduled for April 7 in Kissimmee, Florida.

On Monday, CCL argued that the defendants argued for an implausible construction of the Florida rules of civil procedure, in a specious effort to avoid invalidation of a statute that expands presuit discovery to include ex parte interviews with a medical malpractice plaintiff’s treating physicians, including those who treated the plaintiff two years before the alleged malpractice. In the reply brief filed in Florida’s First District Court of Appeals, CCL President Robert S. Peck argued that the rule’s delineation of three forms of permissible discovery was exclusive under applicable canons of constitutional construction and that the Legislature had no authority to expand the available methods because the state constitution limited that authority to the Supreme Court. Opposing counsel argued that the use of the word “may” in the rule that stated parties may use one or more of the following methods indicated that the rule anticipated legislative expansion. The CCL brief rejoined that the word “may” simply made presuit discovery permissible rather than obligatory.

In addition to responding to other arguments, the CCL brief made a special point about the state constitutional right of privacy. The trial court had found that the plaintiff had neither standing to make a privacy claim nor was entitled to make such a constitutional claim against a private party. The defendants simply parroted that ruling. CCL, however, pointed out that the trial court and defendants had conflated arguments applicable to the invasion of privacy tort, which seeks damages, with the constitutional right in a case that merely seeks a declaration of rights. Moreover, the brief said, the necessary state action occurred when the legislature passed the statute. Because the defendants had indicated their intention to utilize the statute, they were proper parties to a declaratory judgment action to decide the constitutionality of the underlying statute.

With briefing now complete, the case will soon be set for oral argument.

On December 11, 2014, CCL filed a brief arguing that a trial court erred in excluding expert evidence on the effect of gasoline fumes in causing neurological defects in a child born with severe neurological problems. The case, Sean R. v. BMW of North America LLC, pending in the New York Court of Appeals, will determine the level of reliability an expert must meet to satisfy the Frye test, which requires expert scientific evidence to use methodologies that are generally acceptable within the relevant expert community. CCL’s brief was filed on behalf of amicus curiae American Association for Justice.

The issue arose because the plaintiff family purchased a new 1989 BMW, but emitted a strong odor of gasoline inside the car. Plaintiff Debra Reeps drove the car throughout the first trimester of her pregnancy. Subsequently, the BMW dealer identified a defective hose as the source of the gasoline fumes. Sean Reeps was later born with severe birth defects, including brain damage. Plaintiff brought this product liability action against the manufacturer, alleging that Sean’s exposure in utero to gasoline fumes was the cause of his injuries.

The trial court granted defendant’s motion for summary judgment. The court held that the testimony of plaintiff’s experts that in utero exposure to gasoline vapors or that of its components can cause birth defects (general causation) is not admissible in the absence of epidemiological studies demonstrating such an association. In addition, plaintiff was required to show that gasoline vapors, not simply the vapors of gasoline components, such as toluene or benzene, may cause birth defects. Moreover, the court ruled, plaintiff was obliged to show an association between gasoline exposure and the specific neurological defects suffered by Sean. The court also held that plaintiff’s expert testimony quantifying Debra’s exposure (specific causation), based on “odor threshold methodology,” was insufficient because the expert’s numbers “just don’t add up.” The appellate division affirmed in a short opinion.

AAJ’s amicus brief to the Court of Appeals, authored by CCL Senior Counsel Jeffrey R. White, contended that these overly stringent requirements were not consistent with the weight of authority across the country and did not comport with the practice of scientists. The brief emphasized that the types of causation evidence plaintiff offered were noted with approval in the Federal Judicial Center’s Reference Manual on Scientific Evidence. The court also erred in excluding plaintiff’s experts by focusing on the experts’ conclusion, rather than inquiring into the general acceptance of their methodology, as Frye jurisdictions require. As a result, plaintiff was deprived of his constitutional right to present the merits of his case to a jury.